New Delhi: The Supreme Court on Friday referred to a five-judge Constitution bench the plea challenging the validity of a penal law on adultery which only punishes a married man for having extra-marital sexual relations with another married woman.

A bench comprising Chief Justice Dipak Misra and justices AM Khanwilkar and DY Chandrachud took a prima facie view that though the criminal law proceeds on "gender neutrality", the concept was absent in section 497 of the Indian Penal Code (IPC) which deals with the offence of adultery and referred the matter to the larger bench.

Section 497 of the 158-year-old IPC says: whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such case, the wife shall not be punishable as an abettor.

File image of the Supreme Court of India. AP

The apex court also referred to its 1954 judgement, delivered by a four-judge bench, that had upheld the validity of Section 497 saying that it did not violate fundamental rights like the right to equality.

It referred to societal transformation and concepts of "gender equity" and "gender sensitivity" and said that affirmative rights have to be conferred upon women and earlier judgements needed to be examined by a larger Constitution bench.

The bench then referred the PIL filed by Joseph Shine, an Indian who is living in Italy, to a Constitution bench which would be set up by the CJI in his administrative capacity.

Earlier, the apex court had issued notice on the PIL that alleged that only married men can be punished for the offence of adultery for having consensual sex with the wife of another man.

It had also said if the husband gives consent for sexual intercourse between his wife and another man, then it nullifies the offence of adultery and turns the woman into a commodity, which goes against the principle of gender justice and the constitutional mandate of the right to equality.

It had termed the provision "prima facie archaic" and said that it was "tantamount to subordination of a woman where the Constitution confers equal status".

"A time has come when the society must realise that a woman is equal to a man in every field. This provision, prima facie, appears to be quite archaic.

"When the society progresses and the rights are conferred, the new generation of thoughts spring, and that is why, we are inclined to issue notice," the bench had said.

The court had said it needed to examine why a married woman, who may have been an equal partner to the offence of adultery with a married man who is not her husband, should not be punished along with the man.

Secondly, the bench had said it will examine if the husband of a woman gives his consent or connives for sexual intercourse with another married man, then does it not turn her into a commodity.

"Prima facie, on a perusal of Section 497 of the Indian Penal Code, we find that it grants relief to the wife by treating her as a victim. It is also worthy to note that when an offence is committed by both of them, one is liable for criminal offence but the other is absolved," it had said.

Joseph, in his plea, said that Section 497 was "prima facie unconstitutional on the grounds that it discriminates against men and violates Article 14, 15 and 21 of the Constitution".

He said, "when the sexual intercourse takes place with the consent of both the parties, there is no good reason for excluding one party from the liability".

The plea also said that the provision also indirectly discriminated against women by holding an erroneous presumption that they are the property of men.

"This is further evidenced by the fact that if adultery is engaged with the consent of the husband of the woman, then such act seizes to be an offence punishable under the code," it said.

The plea said the provision has been treated to be constitutionally valid in three verdicts of the apex court in 1954, 1985 and in 1988.

The petitioner also challenged Section 198(2) of CrPC, which deals with prosecution for offences against marriages.